Paul Onyango Orende Alias Obaji v Republic

5. This being the first appellate Court, the Court is enjoined to reappraise and analyse the evidence afresh with a view to arriving at its own independent and findings but having in mind that it did not see the witnesses testify. (See Okeno vs Republic 1972 EA). 6. The case of the prosecution was that on 25/1/2024 at about 7.00am, the complainant (Pw1) was passing near the appellant’s house on her way to school when the appellant forced her into his house. He locked the main door, led her to bed, removed her short, removed his trouser pulled up her school uniform and defiled her. This was the second time he was defiling her. After defiling her, he let her go to school with a warning not to tell anyone about it. 7. At school, she informed her teacher, Madam Andenyo (Pw4) about the incident. Pw4 informed Pw1’s father who came with a motorbike, took her to hospital and reported the matter to the police. She identified her assailant as ‘Obaji’, the accused in Court. 8. MAG (Pw2), the complainant’s mother, was in Kisumu town when she received a call from her daughter from Nairobi with information that the minor had been defiled. When she returned home that evening, the complainant narrated to her how the accused had defiled her. She told the Court that the complainant was born on 13/3/2012 and she produced the Birth Certificate in respect thereof as PExh1. 9. RG (Pw3), the father of the complainant was at home on 25/1/2024 when at 9.30am, a student from the school where the complainant was schooling came home. She informed him that he was required at Rata Dispensary. Shortly thereafter, Pw4 arrived aboard a motorcycle and picked him. They headed to Rata Dispensary where they found the complainant with a Clinical Officer. They were advised to report the matter to Rata Police Station which they did. His daughter informed him that ‘Obaji’ had defiled her. She was examined and the P3 and PRC forms were filled. 10. Pw4 was Madam MAO, a teacher at [Particulars withheld] Primary School. On the material day, she was in Grade One class teaching when she noticed the complainant as having a problem. Upon inquiring, the complainant told her how the accused had lured her to his house and defiled her. She informed the other teachers of the incident and rushed the complainant to Rata Health Centre. She later made her statement to the Police. 11. Pw5 Kevin Odhiambo Owino, a Clinical Officer at Kombewa County Hospital told the Court that the complainant was brought to the hospital in the company of her father, a senior teacher and a Police officer with a complaint of defilement She reported that it was not the first time he did so to her. He had earlier on defiled her but the parents resolved the matter with the clan. 12. On examination of the vagina, there was normal external genitalia, lacerations of both labia minora and majora; hyperemic vulva and the hymen was not intact. He opined that the complainant had been penetrated. 13. PC Mututu Ndile (Pw6) received a report of defilement at Rata Police Station at noon of 25/1/2024. The same was made by the complainant who was accompanied by the father and teacher. The complainant reported that in the morning of the that day, the appellant had called her to go and accompany his children to school. He tricked her into his house and defiled her warning her not to tell anyone. She arrived school late looking disturbed. On interrogation by the teacher, the complainant revealed that the accused had defiled her. The incident was then reported to the Police and a P3 Form issued. The same was filled. The appellant was later arrested and charged. 14. When placed on his defence, the appellant gave a sworn statement. He denied defiling the complainant. He stated that in the morning of the material day, he woke up and took a stroll. A boy was sent to him https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5711/eng@2026-04-30 2

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who asked him to take him to town to buy him something. That he and the family of the complainant had a boundary dispute in which Pw2 and Pw3 were embarrassed when the Surveyor found that they had encroached on his land. That there was no dispute between him and Pw4. 15. It is on the foregoing evidence that the trial court found the appellant guilty convicted and sentenced him to life imprisonment. 16. As to whether the prosecution proved its case against the appellant beyond reasonable doubt, the specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the perpetrator. 17. The appellant contended that the prosecution case was not proved to the required standard. That the age of the complainant was never proved, penetration was never proved and that the evidence of the prosecution was contradictory. 18. Proof of age is a very important factor in defilement cases. It must be proved that the victim is less than 18 years. Further, the age bracket also matters upon conviction on the sentence to be meted out. 19. Pw2 testified that the complainant was born on 12/3/2012. She produced her Birth Certificate No. A2xxxxxx as PExh1. The same revealed that he complainant was born on 17/3/2012. 20. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: "… the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….” 21. Accordingly, on the basis of the Birth Certificate that showed that the complainant was born on 12/3/2012, it is clear that she was 10 years and 10 months as at the time of the alleged incident. The age of the complainant was proved to the required standard. 22. On penetration, section 2 of the Sexual Offences Act defines penetration as follows: “ the partial or complete insertion of the genital organ of a person into the genital organ of another.” 23. It was the complainant’s testimony that after being lured by the appellant into his house, he laid her on a bed removed her short, got on top of her and did tabia mbaya. That he pulled up her uniform, removed his trouser and inserted his penis into her vagina. That this was the second time he was defiling her. Pw5 who examined her found that there were lacerations of both labia minora and majora and that the hymen was not intact. That the lab findings and the physical examination showed that there had been penetration. His findings were set out in the P3 Form and PRC that were produced as Pexh2 and PExh3, respectively. 24. The testimony of the complainant was clear. It remained unshaken. Her testimony was corroborated by the medical evidence tendered by Pw3. Accordingly, I find that the prosecution proved the element of penetration to the required standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5711/eng@2026-04-30 3

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25. The appellant contended that the evidence of the prosecution was full of inconsistencies and contradictions. This Court has carefully considered the prosecution evidence. There was no iota of contradiction, in its view. The evidence was consistent and unshaken. In any event, if there was any contradiction, which there was none, it was not material enough to affect the trial Court’s findings. 26. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), the court cited with approval the case of Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 as follows: “ With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 27. On identity, the evidence on record was clear. The appellant was a neighbour to the complainant. She knew him well even by name. she knew his children with whom they were schooling together. The complainant not only identified the appellant to Pw4, she also identified him in Court as the perpetrator. There is no doubt that the appellant was the perpetrator. 28. As regards the appellant’s defence, he sought to set up an alibi. Of course he was under no obligation to prove its truthfulness. However, for it to succeed, it had to be cogent such as to displace the prosecution’s case. In the present case, the alibi was but an afterthought. When Pw2 and Pw3 testified the appellant did not question them about the alleged boundary dispute between them. He never even intimated that he was away from his home that morning. The name of the alleged boy who called him to take him to town was not disclosed. Neither the name of the alleged town to which he had gone that early. The item he had gone to buy for the alleged boy was never disclosed. The said defence was properly rejected. 29. As regards the sentence meted out on the appellant, sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The Court of Appeal in the case of Ogolla s/o Owuor v Republic, (1954) EACA 270, held as follows: “ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 30. The penal section for this offence is found in section 8(2) of the Sexual Offences Act which states that: “ A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life." 31. In view of the foregoing, I find the appeal to be without merit and dismiss the same. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF APRIL, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5711/eng@2026-04-30 4

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